IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.217/2019 BETWEEN :
Vipin Vijayan S/o Vijayan Narayan Aged about 28 years R/at C/o Sri Venkata Subbaiah House No.110, 7th Main Road Near HDFC Bank ATM, Bagalur Cross, Vinayaka Nagara, Yelahanka, Bengaluru-560 063.
Permanent resident of; Vathsalyam 30/102A, KSHB Colony Medical College P.O.
Kozhikode (MCP), Kozhikode, Kerala-673 008.
… Petitioner (By Sri K. Nagabhushana Reddy, Advocate) AND :
The State of Karnataka by Chikkajala Police Station Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Smt. Namitha Mahesh B.G., HCGP) … Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.180/2018 of Chikkajala Police Station, Bengaluru City, for the offences punishable under Sections 376, 323 and 506 of Indian Penal Code.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R The present petition is filed by accused under Section 439 of Cr.P.C. to release him on bail in Crime No.180/2018 of Chikkajala Police Station for the offences punishable under Sections 376, 323 and 506 of IPC.
2. I have heard the learned counsel for the petitioner and the learned HCGP for the respondent- State.
3. The gist of the complaint is that the victim complainant was acquainted with the petitioner as both they were working in Indigo Airlines. They have come in contact with each other, they became close and there after there was exchange of messages and calls. It is further alleged that when they became close friends, they started meeting now and then and used to discuss about the employment related suggestions. It is alleged that in the month of March, 2018 accused called the complainant to a hotel near Decathloan Showroom in Chikkajala and took her to Oyo Rooms and forced her to stay with him in the said room for the night by promising that he will respectfully behave with her. After some time, he started showing his true colour by showing her some porn clippings and videos and thereafter he sexually assaulted her though she resisted for the said Act. It is further alleged that threreafter he also sexually assaulted her many times by threatening her over phone and he blackmailed her and forcibly assaulted sexually on many occasions by promising her that he would marry her. Thereafter he did not responded and as such the complaint came to be filed.
4. It is the submission of the learned counsel for the petitioner that the said complaint has been filed after lapse of eight months. In the complaint it is alleged that first time she has been sexually assaulted on 14.2.2018, but at that time, she has not filed any complaint. He further submitted that as per the complaint, the accused has sexually assaulted the complainant many times by taking her to room, but no complaints have been registered. There was exchange of notices through lawyers and only when the engagement of the petitioner was held on 12.9.2018, the present complaint has been lodged. Without admitting the said act of the accused, he submitted that it was a consensual sex. He further submitted that victim is also major and she was knowing all the aspects and with consent they had sex. Relying upon the decision in the case of X Vs. State of Telangana & another reported in (2018)16 SCC 511 he further submitted that if there is consensual sex, then the High Court can release the accused on bail. He further submitted that if the accused has induced the girl on the basis of assurance of the marriage and if the victim consented for the said act then it does not amount to rape. In order to substantiate the said contention, he relied upon the decision in the case of State of Karnataka Vs. Anthonidas, reported in ILR 2000 KAR 266. He further submitted that already charge sheet has been filed and petitioner is not required for further interrogation or investigation. The petitioner is ready to abide by any conditions and to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner on bail.
5. Per contra, the learned HCGP submitted that the victim has been sexually assaulted by the accused on various occasions and because of the threat and other activities of the accused, she has not filed the complaint immediately. She further submitted that the statement of the victim has been recorded under Section 164 of Cr.P.C. wherein she has clearly stated that under the guise of promising to marry her, the accused sexually assaulted her and thereafter he has given go-bye to his words and he is intending to marry another girl. She further submitted that there is ample material to show that accused has sexually assaulted the victim and there are no good grounds to release the petitioner on bail. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the parties and also perused the records, including the contents of the complaint.
7. On close reading of the contents of the complaint it would indicate that the complainant and the accused were having intimate contact over a period for more than 8 to 9 months. Even the complaint shows that the complainant has also visited the lodge as and when the accused called her and even she has stayed with him. There are no circumstances to show that the complainant has resisted when the accused has sexually assaulted her. The complainant and accused were serving in the same airlines and there existed relationship between them and it was with consent.
8. During the course of the arguments, the learned HCGP submitted that accused has promised the complainant that he would marry her and thereafter he has given go-bye to his words and as such it attracts the provisions of 376 IPC, which is a matter that has to be appreciated and considered only at the time of trial. At this juncture that too when the charge sheet is filed and it appears that it is a consensual sex, by imposing some stringent conditions, if the petitioner is ordered to be released on bail, it would meet the ends of justice.
Accordingly, the petition is allowed and accused- petitioner herein is enlarged on bail in Crime No.180/2018 of Chikkajala Police Station for the offences punishable under Sections 376, 323 and 506 of IPC., subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall be regular in appearing before the trial Court as and when he is ordered to do so.
iii) He shall not tamper with the prosecution evidence directly or indirectly and he shall not threaten the complainant in any manner.
iv) He shall not leave the jurisdiction of the trial Court without prior permission.
v) In the event of tampering of the prosecution evidence by the accused, the prosecution is at liberty to move for cancellation of the bail.
Sd/- JUDGE *ck/-